Foreign Nationals in Research:
U.S. Export Control Regulations in the University Setting

Since 9/11, the Federal government has increasingly viewed export control regulations as a means to potentially guard against terrorism and other threats. As a result, there is renewed focus on compliance and enforcement of these regulations, in particular at universities.

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This web page answers the following questions:

• What is Northwestern University's policy concerning the open conduct of research, and how does this relate to export controls?
• What are export controls?
• How could export controls affect my research?
• What is an export?
• What is a deemed export?
• Who is a foreign national?
• When are export control regulations applicable?
• What are examples of items subject to export controls?
• What is fundamental research?
• What is the fundamental research exclusion?
• What countries are subject to embargo?
• What agencies oversee the control of exports?
• What are potential consequences of violating export control regulations?
• Additional Resources

What is Northwestern University's policy concerning the open conduct of research, and how does this relate to export controls?

Northwestern University policy states that the University does not enter into agreements to conduct "secret" or "classified" research, nor does it agree to any requirements that restrict the freedom of a scholar to publish or disseminate findings. Further, University policy states that the University seeks to avoid discrimination on the basis of citizenship status. Simply foregoing these freedoms, regardless of intent, may trigger the strict application of federal regulations. Violation of these regulations may bring severe penalties. However, in some circumstances there may be exclusions from export controls, thereby allowing technology releases to foreign nationals on campus in the US. In order to maintain these exclusions, strict adherence to certain conditions and University policy is required. See "What is fundamental research?"

What are Export Controls?

Export controls are US laws and regulations that regulate the distribution of technology, services and information to foreign nationals and foreign countries for reasons including foreign policy and national security. Export controls usually arise for one or more of the following reasons:

• The nature of the export has actual or potential military applications or economic protection issues
• Government concerns about the destination country, organization, or individual
• Government concerns about the declared or suspected end use or end user of the export

How could export controls affect my Research?

• Publication of research results would be severely restricted or controlled, contrary to University policy.
• Graduate student participation would be strictly prohibited.
• Secure facilities with restricted access may be required.
• Special rules for controlled toxins, bio-agents, and chemicals may be invoked.
• An export license may be required by Commerce or State if information, technology, or an item or service is controlled. Obtaining an export license may be costly and result in considerable delays. Further, such licenses are limited in scope, with release permitted to only one individual or entity.

What is an export?

•   Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside of the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes

•  Such exports include transfers of such items or information to foreign embassies, overseas corporate affiliates, and contractors.
  
  

What is a deemed export?

•  Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague at Northwestern University)

Who is a foreign national?

A Foreign National is an individual who is not a United States citizen, a permanent resident alien of the United States, a lawfully-admitted temporary resident alien or refugee, or other protected individual as defined by 8 U.S.C. 1324b(a)(3). For purposes of Export Controls, individuals on a student visa or H1 visa (including foreign visiting faculty) are considered Foreign Nationals.

When are export control regulations applicable?

Export regulations apply regardless of whether the recipient of the information, technology or materials is unfunded; or funded by a grant, contract, or other agreement; and apply whether or not the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations (ITAR) are cited in related award documents. If a researcher accepts export-controlled technology or information from a government agency, industry, or elsewhere, the researcher is subject to ITAR or EAR regulations. If a Northwestern researcher is unsure whether s/he may be receiving or generating export-controlled information, the researcher should contact the Office for Sponsored Research for assistance.

What are examples of items subject to export controls?

The equipment and technologies that may be covered by the regulations are extensive, from software, computers, cameras, centrifuges, autoclaves, accelerators, radiation detectors, etc. to a wide range of chemicals, biological agents, and toxins. The list of items that may be subject to some form of regulation is approximately 50 pages long. Each item has detailed specifications (e.g., not all cameras are subject to export controls) and, importantly, only technologies that are not publicly available are subject to the controls, although special rules apply to even publicly available encryption software. Each type of item is classified in the export control regulations according to those countries to which it cannot be exported. For example, some items cannot be exported at all without a license; others may be shipped only to Canada without a license; while still other items can be exported to all but a few countries.

What is Fundamental Research?

Fundamental research is basic and applied research in science and/or engineering where the resulting information is ordinarily published and shared broadly in the scientific community.

University research will not qualify as Fundamental Research if:

• the University or researcher accepts any restrictions on the publication of the information resulting from the research, other than customary prepublication reviews [see NU's policy] by research sponsors to prevent inadvertent disclosure of their proprietary information or the compromise of the patent rights of sponsors
• or the research is federally funded and the University or the researcher accepts specific access or dissemination controls regarding the resulting information.

What is the Fundamental Research Exclusion?

Most Northwestern research activities are excluded from export controls because of a general exception for fundamental research. Both the EAR and the ITAR provide that no licenses are required to disclose technical information if the information is in the public domain. Information is in the public domain if it is published and generally accessible to the public through unlimited and unrestricted distribution or through "fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community". This fundamental research exclusion applies to basic and applied research in science as long as the research is carried out openly and without restrictions on publication or access to or dissemination of the research results (EAR 734.8; ITAR 120.11(8)). By not accepting any restriction on publication or foreign nationals, Northwestern protects the fundamental research exclusion.

What countries are subject to embargo?

While exports to all countries are controlled in various ways, there are very strict prohibitions on shipments and interactions with these six countries currently under embargo: Cuba, Iran, Libya, North Korea, Sudan, and Syria.

What Agencies Oversee the Control of Exports?

1) US Department of State (http://www.state.gov/)

• International Traffic in Arms Regulations (ITAR) - 22 CFR 120-130

2) US Department of Commerce (http://www.commerce.gov/)

• Export Administration Regulations (EAR) - Title 15, sections 730-774 of the Code of Federal Regulations

3) US Departmentof Treasury (http://www.ustreas.gov/)

• Office of Foreign Assets Control (OFAC) - foreign asset control regulations, 31 CFR 50

What are potential consequences of violating export control regulations?

It is important that faculty and other researchers understand their obligations under the regulations and follow them. The consequences of violating the regulations can be severe, and include loss of research funding, fines, and/or prison time. Northwestern will assist investigators in complying with export control laws, but the primary responsibility rests with the researcher.

Additional Resources

Researchers throughout the US are challenged by export control regulations. While many organizations provide information on the topic, we highlight below several sites that are the most informative:

Introduction to Commerce Department Export Controls - Bureau of Industry and Security/U.S. Department of Commerce

COGR Export Control Issues - Council on Governmental Relations

Export Control Guidance -University of Maryland, The Office of Research Administration and Advancement (ORAA)

Checklist for Export Control Issues - University of Chicago, University Research Administration (URA)

Collection of Export Control documentation - Massachusetts Institute of Technology, Office of Sponsored Programs (OSP)

For more information on export controls involving Northwestern research projects and applications, please contact Brian Warshawsky, Sr. Contract Officer, at 847.467.3283 or via email at bwar@northwestern.edu . This web page will be updated to provide more information in response to questions and comments received.